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Enforcement of child contact orders in Australia (1999)
Australian government to act
The Australian Federal Government has announced  that it accepts the 1998 report Child Contact Orders: Enforcement and Penalties  of the Family Law Council of Australia, and will implement them through legislation.
The report makes 15 recommendations , the main points of which are summarised below.
The main problems identified by the report are:
- Problems experienced by contact parents
- Problems experienced by residence parents
- The process for determining applications for enforcement
- The role of counselling and mediation
- The drafting of contact orders
- Limited availability of contact handover facilities
The report stresses that contact problems are unique and that special provisions need to apply to the making, and breaches, of contact orders. It suggests that there is a need for a three tiered approach in dealing with the contravention of contact orders:
The report also addresses the need for:
The following issues are also addressed
- Preventative measures - improving the drafting of court orders, educating separated parents about their respective responsibilities to their children, and enabling them to communicate
- Remedial measures - parenting skills courses, remedial counselling, and access to primary dispute resolution (PDR) facilities
- Punitive action - in the event of deliberate disregard for a court order or as a last resort.
Problems experienced by contact parents
Contact parents reported a number of problems, including:
Problems with the current system were also mentioned.
- open refusal of the residence parent to comply with an order;
- difficulties in having contact orders enforced by the court;
- the cost of enforcement proceedings;
- the residence parent moving residence which can make contact difficult or impossible;
- the residence parent being absent when the contact parent calls for the children;
- the residence parent allegedly making false allegations of physical or sexual abuse of a child or domestic violence;
- the residence parent allegedly falsely claiming that a child is ill; and
- disputed interpretations of the contact order.
Problems experienced by residence parents
A number of problems were reported for residence parents also :
- the failure of the contact parent to collect or return children on time;
- failure to attend for contact visits;
- complaints about the condition of the child on return;
- concerns about the safety and/or neglect of the child;
- where a child (particularly when of more mature years) refuses to go on contact;
- situations when the child is ill;
- the behaviour of the child before and after contact visits;
- the contact parent using the contact to harass, intimidate and abuse the residence parent;
- fear of the contact parent;
- threats and controlling actions of the contact parent; and
- problems caused by a lack of clarity in contact orders.
The report notes that the underlying philosophy of Part VII of the Australian Family Law Act is that children have a right of regular contact with both their parents and with other people significant to their care, welfare and development, except where this would be contrary to the child's best interests.
Despite this there is a prevalent attitude that the residence parent can set and vary the conditions for contact, and in extreme cases they may see themselves as the "owners" of the child - and contact parents see themselves largely at their mercy. This attitude has developed over a long period and is well entrenched in some sections of the community. It is unlikely that any innovations by government will be effective unless such attitudes are radically altered, and to this end a program of community education is proposed to reinforce the right of children to have contact on a regular basis with both parents and with other people significant to their care, welfare and development.
It is considered important that all sections of the community understand that, following separation, the residence parent (irrespective of whether that person is the mother or father of the child) does not set the conditions and determine the individual circumstances under which the other parent - or others, including grandparents and relatives - can have contact with a child.
Attitude of the courts
The report notes that there is a fairly widely held view that the Family Court is reluctant to enforce the contact orders it has made. To rectify this, changes should be made to the legislation to make it clear to judges that breaches of court orders must be treated seriously and that wilful disregard of orders of the court shall be dealt with adequately and appropriately.
The report states also that the courts must remember that the existence of a contact order indicates that a ruling has already been made on contact between the child and the contact parent. When the contact ordered by the court is not taking place, the court should be primarily concerned about the reasons for this - there should be no need to re-open old issues or review of the contact order.
The drafting of contact orders
Rather surprisingly the submission from the Family Court of Australia blames litigants in person for poorly drafted orders which are open to misinterpretation. In our experience litigants know exactly what they want, but it is the lawyers and the judges who draw up imprecise orders. In any case it is the duty of the court to ensure that the orders they make (even if they merely rubber stamp them) are clear and precise.
The report suggests that the use of standard forms may improve the clarity of orders, and it also proposes that they should be endorsed with warnings which indicate the seriousness of breaching contact orders and advice about what to do when the order is breached - emphasising the alternatives to court action.
Contact handover facilities
The report, whilst acknowledging the important role of contact centres as a temporary place for hand over, does not consider that they are ideal arrangements from the child's point of view as it feels that the environment created by using such a place does not convey the correct message to the child involved. It does however support the expansion of such publicly subsidised services as without such an arrangement it is likely that some children would eventually lose contact with one parent.
Alternatives to court action
The report expresses concern that the present legislation pushes parents into litigation to resolve breaches of orders, and feels that wherever possible judicial determination should only be used as a last resort.
The following recommendations are made:
- Post-order counselling - to provide information to, and to educate, parents at the time the contact order is initially made - will also address such matters as the implications of not complying with the order
- Primary Dispute Resolution (PDR) - where difficulties are being experienced in having contact with a child in accordance with an order of the court (as an alternative to court action)
- Remedial counselling - following a breach of a court order (as an alternative to punitive action)
Enforcement of contact orders
The report distinguishes between enforcement of orders and the penalties for their breach. The following requirements are identified:
The report recognises the need to act quickly and proposes a simple process where:
- Early judicial intervention in difficult cases
- The use of recovery orders
- Enforcing recovery orders
The idea of the court monitoring cases is novel and welcome.
- greater priority is given to contact enforcement applications
- the parties can put their own case
- the courts can make their own inquiries; and
- the courts can monitor cases as required.
We note that although the report refers to 'compensatory contact' - the ordering of additional contact to cover contact which was obstructed - it is not specifically addressed in the recommendations. Likewise the situation where the residence parent 'moves away' is not sufficiently covered.
Penalties for breaches of contact orders
The Family Law Council is of the view that there need to be special legislative provisions relating to contact enforcement because of the unique nature of contact problems.
Where all other approaches have failed, the report suggest an armoury of weapons which may have a powerful influence on uncooperative residence parents and ensure that orders are complied with:
- Review of residence order - it is considered that the most effective way to get residence parents to comply with contact orders may well be to make it clear to them that in the event of continued refusal to comply with those orders their residence order will be reviewed.
- Conditional residence orders - a more acceptable way of conveying this message to residence parents may be to make it clear that a condition of the grant of the order is compliance with the conditions of the contact arrangements in the contact order.
- Reversal of residence/contact arrangements - this may be feasible in some cases, even if on a temporary basis.
- Residence to a non-parent - where the other parent is not able to take on the role of residence parent, a residence order may be granted to another person, such as a grandparent, who is willing and able to take on the role. This could be for a trial or temporary period.
- Making the child a ward of the state - a more serious alternative - so that both parents can have adequate contact with the child. This option would only be relevant in extreme circumstances where there is an intense level of disputation between the parties which is having a detrimental effect on the welfare of the child.
- Payments into court - the court could be given power to require recalcitrant residence parents to make payments into court. Such funds could be used to compensate the other parent for any financial loss.
- Bonds - the use of recognisances is quite common in these cases. Council considers that the word "bond" should be used instead of "recognisance".
- Recovery orders - In appropriate cases the court should be invited to use its power to issue a recovery order for the delivery of the child to a parent.
The need for legislative changes
The report notes that some of the recommendations made will require legislative amendments. The main recommendations on short-term changes are:
The longer term measures envisaged in the report will require more significant legislative change. Those changes primarily relate to the establishment of a summary process to undertake the primary work relating to problems with child contact.
- That, because of the unique nature of issues surrounding child contact, there should be separate provisions in the Act dealing exclusively with child contact enforcement;
- That the legislation should include preventative and remedial, in addition to punitive, means of dealing with breaches of contact orders;
- That there be emphasis placed on contact parents taking their problems to a counsellor or mediator rather than making an enforcement application to the court;
- That there should be wider use of counselling or mediation services to assist the court as appropriate; and
- That the legislation underline the need for the court to ensure that its orders are enforced.
Child support and contact enforcement
The report strongly recommends that there should be no link between payment of child support and child contact.
Resources and financial issues
The report takes the view that the problem of child contact enforcement is real, it is persistent and it must be addressed.
A number of recommendations made in the report have resource implications:
The report recommends that the Australian Government invests funds in the proposals put forward and stresses that unless funds are made available to achieve changes in this area the present problems being experienced by parents are unlikely to be overcome. However, it is Council's belief that in the long-term there is potentially a significant cost saving (in financial and human terms) in the proposals put forward in this report. A relatively modest investment in improving the system now will, in the opinion of Council, translate into a resource saving in the long-term. This will happen if:
- A public education program designed to change the current attitude which exists in some sections of the community and which accepts that, following separation, the residence parent can set the conditions and determine the individual circumstances under which the other parent, or others, can have contact with a child;
- The inclusion in the public education program of ongoing, long-term community education about the provisions of the Family Law Reform Act 1995;
- That assistance be given to the court in relation to contact enforcement applications through a greater availability of counsel appointed to assist the court;
- To improve access to primary dispute resolution processes to assist parents, and the court, in child contact matters;
- Giving a higher priority to child contact matters coming before the court and expediting the processing of applications for contact orders;
- Increased use of the court's power under section 67T to issue recovery orders for the delivery of a child in appropriate cases; and
- More and better resourced contact handover centres.
- the present attitude about contact orders can be radically altered,
- the courts can be seen to enforce their orders, and
- a greater proportion of parents begin to realise that co-operation is essential in the interests of their children.
- Improved enforcement of parenting orders - Further Family Law reform to improve parenting - News release from the Australian Attorney General - The Hon Daryl Williams AM QC MP - 26 February 1999
- Child Contact Orders: Enforcement and Penalties; Family Law Council, Canberra, June 1998 (340K bytes)
- Recommendations of the report
- Interim Report: Penalties and Enforcement; Family Law Council, Canberra, March 1998 (200K bytes)
Last updated - 21 August 1999
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